(concurring in part and dissenting in part):
The appellant, Roland E. Matthews, Jr., convicted of manslaughter, was sentenced to imprisonment for a term of 4 to 14 years on October 29, 1965. He was sent to Lorton Reformatory where his behavior constituted such a disciplinary problem that on March 23, 1967, he was transferred to St. Elizabeths Hospital, a mental institution, for psychiatric treatment. He was returned to Lorton on August 8, 1967, and was still there when the case was tried in the District Court.
On June 16, 1967, while he was in St. Elizabeths, Matthews filed this suit in the United States District Court for the District of Columbia against Kenneth L. Hardy, Director of Corrections, and the District of Columbia Board of Commissioners in which he alleged he had been illegally committed to St. Elizabeths, but prayed only that certain personal property taken from him at the time of his incarceration be returned to him.
Later, and after Matthews had been returned to Lorton, an attorney appointed to represent him filed on May 6, 1968, an amended complaint supplanting the original which had been unartfully drawn by the appellant himself. The amendment reiterates the allegation that Matthews’ transfer to St. Elizabeths had been illegal, complains that he is separated from the general prison population at Lorton, and that his personal property had been unlawfully taken from him. The prayer is as follows:
“(1) that this Court enjoin defendants from transferring plaintiff to Saint Elizabeth’s Hospital without judicial proceedings to determine whether plaintiff is mentally ill;
“(2) that this Court issue an order in the nature of a Writ of Mandamus directing the defendant [sic]
“(a) to transfer the plaintiff back to the general prison population at the Lorton Reformatory, Lorton, Virginia
*614“(b) to return forthwith the personal property taken from plaintiff without due process of law.
“(3) that this Court grant judgment against the defendants for the sum of fifty five [sic] thousand dollars ($55,-000.00), interest, and costs.
“(4) that this Court grant such other relief as the Court shall deem necessary to protect plaintiff’s Constitutional rights.”
Affidavits were filed by both sides and summary judgment in favor of the ap-pellees was awarded by the District Court. Matthews appeals. My colleagues affirm the denial of monetary and mandamus relief; but they hold that Matthews’ rights were violated when he was transferred to St. Elizabeths without a judicial hearing (although there was no such issue), and remand the ease to the District Court “for an appropriate remedy.”
I concur in that portion of the majority opinion which affirms the denial of monetary and mandamus relief, but I dissent from the action of the majority in remanding “[f]or the reasons stated in Part II infra, * * * this aspect of the case for appropriate action by the District Court.”
The pleadings present an insurmountable obstacle to this action of the majority: there was no justiciable issue presented as to whether the appellees should be enjoined from returning Matthews to St. Elizabeths, and so the District Court had no choice but to rule as it did on that aspect of the case. Matthews was in Lorton when he filed the amended complaint. There is no allegation in it, nor is there any proof or even a suggestion in the record, that the appellees threatened to, or were about to, return the appellant to St. Elizabeths or that they contemplated doing so. In spite of this, it is prayed in the amended complaint that the court enjoin appellees from transferring Matthews to St. Elizabeths without a judicial inquiry as to his mental condition. Of course, the District Court could not enjoin the appellees from taking a step which was neither threatened nor contemplated. A court is not authorized to operate in that fashion.
It is interesting to note the reasons which the majority give for remanding the case to the District Court for further action with respect to any future transfer to St. Elizabeths. They refer to “[a]p-pellant’s repeated commitments without hearing to mental institutions,” but admit in footnote 18 that there is nothing in the record to show appellant has been repeatedly committed without hearing to mental institutions. They say in footnote 18:
“Some time after this ease was heard in the District Court appellant was again transferred to St. Elizabeths; at some later time he was transferred to a federal mental hospital in Missouri. At the time of oral argument before this court appellant was back at Lorton. While these facts emerged at oral argument and were not in the record before the District Court, they are unchallenged, and should not be ignored. # -x- * ”
As the “facts” recited in footnote 18 are not in the record, the majority have no judicial information on the subject and are clearly unjustified in using those “facts” as a basis for saying in the text of their opinion that appellant has 'repeatedly been committed without hearing to mental institutions, and in basing their decision thereon.
Finally, the majority say:
“Since there is no assurance that appellant will not again be transferred to a mental hospital, we must remand the case to the District Court for an appropriate remedy. * * * ”
I suggest that this appeal is from the judgment entered by the District Court. We must decide it on the record made in that court, and are not authorized to speculate as to what may have happened after that record was closed, or to base a decision on such speculation.
Matthews was an inmate of Lorton at the time the District Court entered its judgment. There is nothing in the record *615to indicate or intimate that some time after that he was again transferred to St. Elizabeths and then to a federal mental hospital in Missouri. The majority statement that these things happened has no basis whatever in the record and is pure conjecture.
I cannot say too emphatically that what may have happened after the District Court’s judgment was entered has no proper place in our consideration of this appeal. As I said in another case, I suppose I am hopelessly old-fashioned, but I adhere to the view that an appellate court has no right to go beyond the record and decide a case on what it thinks may have happened after the record was closed.
Another phase of the majority opinion requires comment. It is that which writes into 24 D.C.Code § 302 provisions of the civil commitment act, 21 D.C.Code § 501 et seq., and so holds that hereafter prison authorities may not transfer a prisoner to a mental hospital during his term, as authorized by § 302, unless a judicial inquiry into the prisoner’s mental condition authorizes that action.
In the first place, this portion of the majority opinion is obiter dictum because it is unnecessary to decision. This is a simple case which can and should be decided in the manner I have indicated, without reference to §§ 302 and 501 et seq. There is no necessity here for a guideline opinion as to the procedure to be followed in any future transfer from Lorton to St. Elizabeths when the complaint did not allege, and the appellant did not attempt to prove, that such a transfer was proposed, threatened or even contemplated by the appellees.
In the second place, in addition to being dictum, the phase of the majority opinion under discussion is wrong as well, as will appear from what follows. While .Matthews was serving his sentence in Lorton he was transferred to St. Eliza-beths in strict accordance with 24 D.C. Code § 302 (1967), which is as follows:
“Any person while serving sentence of any court of the District of Columbia for crime, in a District of Columbia penal institution, and who, in the opinion of the Director of the Department of Corrections of the District of Columbia, is mentally ill, shall be referred by such Director to the psychiatrist functioning under section 24-106, and if such psychiatrist certifies that the person is mentally ill, this shall be sufficient to authorize the Director to transfer such person to a hospital for the mentally ill to receive care and treatment during the continuance of his mental illness.”
My colleagues say, erroneously I think, “On March 16, 1967, appellant was transferred from Lorton to St. Elizabeths without a judicial hearing; thus his rights were violated by that transfer.” As I have said, they read into § 302 the provisions of the 1964 civil commitment act, 21 D.C.Code § 501 et seq. (1967), and construe it as requiring a judicial hearing and, if requested, a jury trial before a prisoner may be transferred to a mental hospital. In so holding, the majority seem to have been largely motivated by what they say is the “definite possibility that transfer to St. Elizabeths might result in a prisoner being incarcerated for a longer time than if he remained at Lorton.”
There is no basis for such apprehension, and so there is no need to revamp § 302 to guard against the result feared by my colleagues. As Matthews was serving a sentence in Lorton when he was transferred to St. Elizabeths under § 302, and the transfer was an administrative matter within the sound discretion of the prison authorities, his confinement in St. Elizabeths could not last longer than the term of imprisonment to which he had been sentenced. If when his term expires he were still in St. Elizabeths, he could be retained thereafter only pursuant to civil commitment proceedings under § 501 et seq.
This is not the first time a court has been confronted with the argument that a prisoner cannot, during his term, be transferred to a mental hospital unless in a judicial proceeding it is first deter*616mined that his mental condition justifies such transfer. In Darey v. Sandritter, 355 F.2d 22 (1965), the Ninth Circuit considered a petition for a writ of habeas corpus by a prisoner who, during his term, was transferred to a mental hospital by prison administrative action. He claimed he was illegally detained because a hearing as to whether he should have been sent to the hospital had not been conducted. In denying the prisoner’s contention the court said:
“It is not appellant’s hospitalization which deprives him of his liberty. The deprivation stems from the judgment of conviction and the sentence of confinement. The hospitalization does not result from a separate order or judgment which is independent of the penal judgment and might extend a legally imposed term of restraint. Whether a prisoner, during his lawful term, should or should not receive medical treatment in suitable environs must ordinarily be determined by custodial authorities in the proper exercise of a sound discretion. [Cases cited.] •x- * *»
A similar contention was before the court in Jones v. Pescor, 169 F.2d 853 (1948). The Eighth Circuit rejected it as “wholly without merit,” and said, at page 856:
“ * * * As to the contention that appellant’s transfer to and confinement in the U. S. Medical Center were illegal and violative of due process, because he was not given a hearing on his need for such care and treatment, we have previously held that the determination of a prisoner’s mental condition and need for treatment pursuant to 18 U.S. C.A. § 876 and without judicial trial, does ‘no violence to his constitutional rights.’ Douglas v. King, 8 Cir., 110 F.2d 911, 913 [127 A.L.R. 1200]. And again, we have said that Congress undeniably has the power to make such provision for the medical care and treatment of federal prisoners and to set up such administrative machinery for determining a prisoner’s need for care and treatment and the nature thereof, without the right to a formal hearing, as it deems advisable. Esta-brook v. King, 8 Cir., 119 F.2d 607, 609, 610.”
These decisions of the Eighth and Ninth Circuits seem to me to be sound and, in my opinion, should be followed here. I see no reason for intruding into prison procedures and enlarging the purpose of Congress expressed in § 302 by reading into that section the provisions of § 501 et seq., so I dissent from the action of the majority in doing so.